Secrecy News

New Light on the Office of Legal Counsel

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In 2004, Congress enacted an ambiguously-worded statute that made it a crime to produce, possess, or use the variola virus (which causes smallpox) or any derivative of it that has more than 85 percent of the variola gene sequence.

Scientists were alarmed because the statute could be read to prohibit possession of other viruses that are used in research, and to compromise the development of vaccines. The National Science Advisory Board for Biosecurity, which advises the Secretary of Health and Human Services, recommended that the statute be repealed.

But it wasn’t repealed. Instead, it was “interpreted” by the Justice Department Office of Legal Counsel (OLC) to eliminate the problem. The OLC opinion (pdf), published by the Justice Department this week, said that the prohibition extends only to viruses that cause smallpox and those that are deliberately engineered by human manipulation of the smallpox virus itself. The vaccine developers and other scientific researchers were off the hook.

No sensible person would be likely to object to the conclusion reached by OLC. What seems problematic, however, is the interpretive process and the quasi-legislative authority that OLC now has to define and redefine the terms of existing laws. In this case, OLC interpretation was the functional equivalent of statutory amendment or repeal. And though unclassified, the July 2008 OLC ruling remained unpublished for several months. One can only imagine what OLC may be doing in classified areas.

Substantive replies were given (pdf) to questions such as these: If an OLC opinion is incorrect, would it still confer immunity on a person who relied on it? (Basically, yes.) How does the Department decide which OLC memoranda and opinions are to be classified and which are to be released to the public? (OLC does not have original classification authority, and proceeds on a case by case basis.) Can the President change his interpretation of an Executive Order without formally amending the order or issuing a new one? (Yes, he said.)

Other questions, such as why Deputy Attorney General James Comey said that officials would be “ashamed” when the public learned of certain OLC legal interpretations, were not directly answered.

And still others, such as the limits of Presidential authority, cannot be definitely answered at all, Mr. Bradbury said. “The President’s independent constitutional powers, including his powers as Commander in Chief, have never been fully defined, and cannot be, because their contours necessarily depend on the concrete exigencies of particular events.”